ProfLERoy

Legal updates, new research, interesting ideas for students-- past and present-- of LER Prof. Michael H. LeRoy, University of Illinois at Urbana-Champaign. Welcome, also, to friends who are curious about employment and labor law.

Wednesday, February 21, 2018

Aren’t the $1,000 pay
raises wonderful! … Well, not when you look carefully at what’s going on. When
have employers ever made bonus payments in exact increments to everyone in
their company, from the least skilled to the most skilled, or the lowest performers to the best performers? And how is that Wal-Mart’s
one million employees (low skilled) get the exact pay raise of 145,000 Bank of
America employees—people who have more skill and education?

The answer seems to
be politics—for sure, it’s not about labor markets or company compensation
plans because at no point do firms get together and discuss how they will pay
their workforces.

That takes us to
Disney. They’ve paid the $1,000 bonus to nonunion employees.

But they are not
paying this to union-represented workers on Disney properties. Those 38,000
employees were in wage negotiations before the tax bill was passed and
companies began to hand out these politically-motivated bonuses. What the company apparently
wants is some give-backs for the bonus—and likely, to send a signal to the
38,000 employees that the union is their real problem. Good luck with that
Mickey Mouse idea—even Goofy would see through that sham approach to pay
raises.

Tuesday, February 20, 2018

On a visit to a beef slaughterhouse
in December, I was told by workers they feared that the Trump administration
would speed up allowable “chain speeds” for slaughterhouses.

Under USDA and
Department of Labor rules, the chain speed for moving dead steers is 400 per
hour; hogs are 600 per hour.

Now, the Trump administration is raising chain speeds in hog plants.

Speed limits are
in effect to protect workers from injuries. Workersare especially prone to
slicing injuries because they work in a cold room, and cut carcasses that have
globs of fat that are slippery in that setting.

The new chain speed
for hogs will rise to 1,106 per hour—a feverish pace.

This will impact
consumers, too. There are meat inspectors at every plant. They cannot keep up
with that blistering speed.

The workers I met—about
half from Mexico, the other half from Nebraska and Iowa—were already looking
into other jobs in December. They told me they won’t make as much money. But
the unemployment rate in Sioux City, Iowa is 1.8%. They said they’d settle for
a buck or two less per hour—from $15/hour—to save their fingers and protect
their backs from rotating heavy carcasses at blinding speeds. Also,they
predicted that meatpackers would have trouble maintaining a full workforce
under oppressive chain-speed conditions.

Sunday, February 18, 2018

What if President
Trump literally said that his executive orders would
allow more whites to enter the U.S. but not people of other races? Of course, that was the gist
of his “shithole country” comment when he fulminated over a bipartisan
agreement for immigration reform. Haiti,
the nation to which he referred, is 95% black.
Norway’s population, the better immigration alternative in his view, is
92% white. A president’s constitutional
powers over immigration are plenary; but does this legal doctrine mean that
President Trump can favor whites over other races?

I pose this as my
research question. More specifically, I ask whether the “Hire American”
preference in Executive Order 13,788 is constitutional.

I conclude that
this order is a thin veil of race discrimination aimed at Asian Indians. For
this reason, I believe it would not survive a court’s heightened scrutiny under
the Fifth Amendment’s Due Process Clause.

Why do I
think the order is a racial classification?

In a
paper I’ll present next week at a conference at NYU Law School, I end by
stating:

This
order has broad ramifications for the American economy. Each year, Congress allows for 60,000 H-1B visas and 20,000 related "STEM" field visas.The "Hire American" order seeks to choke that number down to only the best and most highly paid foreign workers. That's close to zero.America’s IT workforce
has 4.6 million jobs— ten times the size of the mining sector that President
Trump seeks to protect,and larger than
the population of 25 states.

Most of
this large workforce employs U.S.-born workers. There are only 525,000 H-1B
visa-holders, compared to 4.6 million IT workers.

Among
U.S.-born workers, 85% are white but only 3% are Asian.

In the
much smaller group of foreign-born IT workers, Asians make up 66% of that group,
with Indians dominating all other Asian countries of origin, while whites
comprise just 25%.

In
short, the visa-jobs in this labor market are mostly held by Indians, but the
regular jobs are mostly held by white Americans.

Executive
Order 13,877 turns this fact-based reality on its head, and traffics in another
Trumpian conspiracy theory— Indians are stealing lots of jobs from white
Americans.

To deny
that this orders is racial discrimination ignores the White House press
conference announcing the order; disregards the Indians-hurt-Americans 60
Minutes program that inspired it; overlooks labor market data in recent Census
Bureau and USCIS reports; denies first-hand accounts of America’s
racially-stratified IT workplace, where Indians sit at the bottom of a
corporate caste system; and whitewashes President Trump’s overt equivalence of
skin color and country of origin to justify his racist immigration regulations.
Like his travel bans, transgender ban, and DACA termination, his “Hire
American” order is likely to be enjoined by a federal court.

***

Whites Versus Indians:

Is the “Hire American” Preference in Executive Order 13,788
Constitutional?

Saturday, February 17, 2018

With President Trump
ending DACA, some portion of 2 million Dreamers could be stateless—that is, if
places such as Mexico bar entry to them.

My mentor, Prof. Gene
Gressman, was Special Counsel to the U.S. House of Representatives in a key
1983 Supreme Court case, I.N.S. v. Chadha.

A bit like today’s
dreamers, Jagdish Rai Chadha was born in The British Empire's colony in Kenya
to Indian parents. Chadha came to the U.S. as a university student in the late
1960s.

At the time of his birth, he was a UK citizen. He entered the
U.S. on a British passport.

After Kenya's
declaration of independence from Britain in 1963 he was not recognized as a
legitimate citizen or resident of Kenya.

India did not
recognize him as a citizen because he was born in Kenya.

Britain stripped all
people born in Kenya of citizenship.

That left Chadha with
no country—save, perhaps the U.S.

After his student
visa expired, the U.S. moved to deport him. He appealed his order. The INS,
under the president’s direction, relented. The House of Representatives was
upset by this: Where, in the law, was he permitted to stay in the U.S.? It was
a decision for Congress to make, not the president.

Why did Prof. Gressman
argue that the stateless man should be removed? Isn’t that heartless?

Prof. Gressman had a profound
mistrust of the presidency as that branch of government administers immigration
law. He was a clerk on the Supreme Court when President Roosevelt issued an
Executive Order to put 117,000 Japanese resident aliens and Japanese Americans
in internment camps.

He wanted to make
sure that Congress never loses its constitutional role in shaping and
implementing immigration law.

Prof. Gressman—and the
House of Representatives—lost that big case. Mr. Chadha stayed in the U.S.
Prof. Gressman was thrilled for him. But the loss amounted a big win for presidential power to run our immigration laws without checks and balances.Prof. Gressman rued the day that a future
president would take immigration law into his own hand, without authority from
Congress. Having watched Roosevelt enact a deeply racist immigration policy by
fiat, he thought that day would come again. Checks and balances were essential
to halt the march of racism and nativism—then and now.

Friday, February 16, 2018

Remington, an iconic
gun maker, filed for bankruptcy on Monday. The Second Amendment cannot save the
firm (it is reorganizing, not liquidating, due to $1 billion in debt it cannot pay).

The company has more
than one business problem. They sold guns with defective triggers, and settled
a massive class action lawsuit filed by gun purchasers.

But Remington also
makes the Bushmaster AR-15, the weapon of choice by mass killers. That gun was used in Florida this week.

Parents of slain
children from Sandy Hook Elementary have a case pending against Remington before
the Connecticut state supreme court.

They are using tort law (think of negligence law) to go after the
gun maker.

Using a century-old common law rule— negligent entrustment— they are
arguing that Remington should have foreseen that a psychopath would eventually
buy their weapon of mass killing and turn it on—in this case—school children
and teachers. The precedent they cite: A highly regarded opinion from Michigan in the 1800s holding a sling-shot maker liable for negligent entrustment of its eye-damaging weapon.

It’s not an easy
proof at all—but the argument goes that unstable people, bent on revenge, will
find a way to buy that gun. This is foreseeable.

Since the Connecticut case was
argued just four months ago, we have had the Parkland, Florida massacre and the
Sutherland Springs massacre.

In the Texas shooting, lawyers have filed a
lawsuit seeking $25 million in damages from the sporting goods store that sold
a weapon to Devin Kelly.

The NRA has enacted a
federal law—Congress enacted the law at the behest of the NRA— that limits
liability for gun makers. But tort lawyers are finding creative ways around the
law—ways that the NRA cannot stop. These lawyers are getting before juries and
arguing that gun makers profit from killing and maiming police, children, teachers,
and parents.

This approach will
not end gun violence; but for now, a major gun maker is in deep financial
trouble. Distributors are being targeted now by lawyers. It’s the closest thing
America has to gun control.

Thursday, February 15, 2018

Stormy Daniels reportedly has a "Monica Lewinski dress" from her hook-up with Donald Trump in 2006. This was
apparently the reason that Michael Cohen bargained to hush-up Ms. Daniels. Will
Trump now enter into direct negotiations to keep Daniels quiet?

To see men bargain over keeping a
stained dress out of sight, it’s time to pull out a copy of The Donald’s The
Art of the Deal. Here are 5 key negotiating points. You can think about how
Stormy might play these angles with Donald’s stain.

1. Think big

"I like
thinking big. I always have. To me it's very simple: if you're going to be
thinking anyway, you might as well think big."

2. Protect the downside and the upside
will take care of itself

"I always
go into the deal anticipating the worst. If you plan for the worst--if you can
live with the worst--the good will always take care of itself."

In immigration law,
courts almost always abstain from overruling a president’s immigration orders.
The reason is that the executive branch—modeled after monarchs—is the
embodiment of sovereignty. One person ultimately decides who enters, and who is
removed: the president.

But starting in the
1970s, tiny fissures opened in this massive legal wall. Since then, it’s been
very hard for lawyers to get a court even to review an alien’s deportation
order. As courts put it, there is but a “crevice” of federal jurisdiction.

President Trump’s
naked bigotry has led to six courts widening this “crevice” of review.

Today, in Eblal
Zakzok v. Trump, the Fourth Circuit, in a 9-4 en banc ruling, upheld a lower
court’s injunction of President Trump’s third travel ban.Judge Gregory wrote: “Examining official
statements from President Trump and other executive branch officials, along
with the proclamation itself, we conclude that the proclamation is
unconstitutionally tainted with animus toward Islam.”

This is not the Ninth
Circuit, fabled for its liberal outlook. No. This court is located in the heart
of the old-Confederacy, where liberalism has not taken root—in Richmond,
Virginia.

Today, Trump is
crowing that the end is nigh for the DACA program. He is dead-wrong. That
program is being held open by a nationwide injunction. An interesting word on
that case: The court’s order technically applies to Secretary of Department Homeland
Security, Kirstjen M. Nielsen. The point is that the court has thought ahead to
likely noncompliance with its order. It cannot enforce an injunction against a
sitting president—but if Nielsen and her ICE police force violate the
injunction, they’ll be subject to contempt and jail—just like Sheriff Joe
Arpaio. Being about 40 years younger than Arpaio, she might not want to be a sacrificial
lamb quite like Arpaio, who, by the way, has a felony conviction record
notwithstanding his pardon.

Wednesday, February 14, 2018

Until the early 1980s, airlines would only hire women—young, trim, attractive women—to be “stewardesses.”
Southwest Airlines—the LUV airline—went a step further.

After some market
research, the newly launched airline—at that time flying only in Texas between
Dallas (Love Field), San Antonio, and Houston— found that their main customers
were businessmen. To make flying more
fun for the guys, they sexualized their human resources—ahem, stewardesses.

The
young women dressed in hot pants and served “LUV bites” during the flights.
Borrowing from Woody Allen’s 1973 movie, Sleeper—a weird take on the year 2073— the
company installed the nation’s first ticket kiosks based on Allen’s orgasmatron
(this was a self-service sexual pleasure machine in which individuals entered, experienced solitary
pleasure, and emerged in a state of total bliss).

Customers loved the
approach. Flight attendants didn’t complain. New routes were added quickly. The
jets were painted with hearts. The airline launched a “Love Is in the Air”
campaign. With each new heart beat, the LUV airline grew as a low-cost carrier
that offered teasingly sexualized service plus a real feeling of
warmth and happiness.

Then Gregory Wilson
and a group of men sued the airline, claiming that its employment practices discriminated
on the basis of sex. The airline countered with a strong Title VII defense—gender
is a “bona fide occupational qualification.” That’s right—the only person who
can be a stewardess is a woman, under 30, slender, … well, you get it.

The court rejected
the defense; Southwest lost the case; and its hot pants uniform came crashing
down.

But Southwest didn’t
overact. They redefined love when they hired men, and renamed the position flight attendant. They took a more mature
approach to romance—one that emphasized light-heartedness, warmth, humor, and good-natured
kidding with passengers.

It’s one of the only
lawsuits I’ve seen an employer lose where the firm used the loss to redefine a
good idea and make it much better.

Tuesday, February 13, 2018

While Americans were
celebrating the Fourth of July in 2009, someone in Albuquerque accosted a transgender
Native American. Cato “Terri”
Benally was beaten to death. She was found in a park with severe head injuries. Police have believed, based on specific evidence,
that Benally was the victim of a hate crime.

A year ago, police arrested this man (photo credit, APD). On Monday,
a grand jury indicted Roger Paul Preston on charges of first-degree murder with
a hate crimes enhancement. Preston faces a trial.

Monday, February 12, 2018

Michelle Baker was
hired on a one year contract to teach in a Catholic school.

As the school year
began, Baker fell in the stairwell at school, and struck her head on the concrete.
She was unable to get up for ten minutes. She was diagnosed with a concussion.
She received an anti-nausea medication and stayed out of work for ten days. She
provided her principal with updated medical information in conjunction with
asking for leave time.

Two weeks later, Baker was cleared to return to work. During this time—and after she was let go from her job—she
suffered from double vision, blurred vision, memory issues, hearing issues,
dizziness, and nightmares.

Baker claims she was
competent, nonetheless, to perform her job duties.

At no time did a medical
provider inform her that she could not perform her duties as a teacher.

The crux of the issue
is the reason the school did not renew her contract.

At that time, her principal said
that Baker did not not begin class with a prayer as required, incorrectly
solved a math problem on the board and failed to correct the answer when a
student pointed out the problem, and did not manage her class well.

She alleged that the reason she was let go was her disability.

Baker says that the reasons given were “pretext”—a
sham for the actual reason that the school did not want to try to accommodate
her occasional absences to get follow-up medical help, nor her small mental slip-ups.

The trial court
dismissed her complaint. The judge reasoned that she was permitted to finish
the year, and the notice of non-renewal came much later that term. Thus, there was no proof of disability discrimination.

The appeals court
will take up the legal issue of whether the trial court failed to apply an
expanded definition of disability under 2008 amendments to the ADA.

Sunday, February 11, 2018

It’s not North Korea.
Both nations fret over this. It’s worker unrest.

I had a lengthy talk
on Friday with a Ph.D./Law student from China. Her country is very worried
about worker unrest. They are experimenting with official types of employment
mediation. That’s why she is here to study.

China has a
state-approved labor union. It’s for show. It’s also powerless.

When China was under
the fist of Chairman Mao, inequality of wealth wasn’t a problem. Almost
everyone was poor and hungry or starving. Now China is wealthy, but its wealth
is very concentrated in large cities and among elites.

China isn’t waiting
for regular workers who are scraping by to explode in angry street
demonstrations. Nor is China eager to copy the American system of free labor
unions—free, meaning that labor unions are independent of government control. They
are trying to use this state union to funnel complaints into a mediation system
where one-off solutions can be discussed and acted on.

As if she was being
monitored, my student leaned in closely. Almost in a whisper, she said: “I do
not think this approach can work because it has so much censorship.”

I leaned in and
quietly said: “I worry about the decline of labor union rights in America.
Today, unions don’t speak for angry workers. A power-hungry billionaire speaks
for them. Someday he’ll be gone. Who will speak for them? Not unions, because
they’ll be legally watered down, not far off from the one-union system in China.”

Saturday, February 10, 2018

Warsaw is the
nearest major city to Bunzlau, the Nazi concentration camp that held my father and
his two brothers. The average daytime high is 24 degrees (F). The low is 12
degrees. The Jews at this camp were poorly dressed for this misery.

You might wonder why
I am showing a photo of an American Nazi-party member who is the sole Republican
candidate for a congressional primary in a month. Simple. My Dad thought Nazis
would never go away. The hate-filled man in this picture proves my Dad’s point.

The next three photos
are for my children and their children. You can look at it, too. It names the
fathers, mothers, aunts, uncles and children in our Hungarian family who died,
mostly at the hands of Nazis, but also on the Russian front.

In the days leading
up to February 11, 1945, my Dad could hear the Allied artillery pounding away
from the west and the Russian cannons booming in the east. It must have been exhilarating
to know that freedom was days away. The Nazis knew it, too. They increased food
rations and got clothes for their prisoners. Sounds like a PR trick that would
be tried today by callous leaders who lie and distort to justify their bigotry.

A California court
made an unusual ruling this week. But first, this
picture. It was taken outside a Hamlet, North Carolina chicken
processing plant in 1991. The company used deep fry industrial vats to process
chickens. It tripled the pressure in a hose to the vat to accelerate the
cooking process. An explosion occurred. Next, the plant caught fire.

It gets worse, much worse. The company locked all the
doors in the production area to keep workers from taking unscheduled cigarette
breaks. Twenty-five workers died in the blaze. Many could be heard in their
final moments pounding on the doors—the doors that the company padlocked.

The owner received a
20 year prison term. The company faced a criminal fine, too. That part is
unusual—and takes us to California for a ruling last week.

Solus Industrial Innovations makes plastic
parts. Their manufacturing process requires boiling water. To save some money, the company used a water heater for
homes. They didn’t want to pay for a water heater built and rated for
industrial uses.

The water heater, once overworked, exploded. Two workers were
killed.

OSHA investigated.
They fined the company $100,000—the maximum under law (which has weak remedies
for extreme cases such as this).

San Diego prosecutors
did something novel. They sought a fine of $ 1 million for each employee
killed. To be clear, they brought this action not to recover for the estates of
the two workers.

It gets more
interesting. Prosecutors claimed that the fine was
allowable under California’s Unfair Business Code. Their point: Unless Solus
paid a heavy price for cutting this safety corner, the rest of the plastics
parts industry would be undercut by this lowball competitor.

In a unanimous ruling
this week, California’s top court allowed prosecutors' action for this deadly
workplace accident. The company’s argument— that federal safety law was the
only law that could be used to sanction Solus— was rejected in the ruling.

Friday, February 9, 2018

My blog on
post-injury drug testing has generated a lively discussion. The consensus view
is that this form of drug testing is justified.

I disagree (as do many but not
all courts); but we are moving on to a more specific question.

Should employers fire workers for testing positive for buprenorphine?This topic came up in the final year of the Obama
administration. OSHA issued a regulation that prohibited blanket, post-injury
drug-testing. Instead, it said that employers need what amounted to reasonable
cause to drug test after an injury. That rule is not being enforced; and the
Trump administration will likely pull it back officially.

Anyway, employers
often use a 10-panel screen (there are smaller and larger panels).

Buprenorphine is a
common drug test in small and large panels. Basically, it picks out opiate
abusers.

But here is the
catch: (1) Buprenorphine is prescribed, and not a street drug, and (2) Buprenorphine
is used in medication-assisted treatment to help people reduce or quit
their use of heroin or other opiates, such as pain relievers like morphine.

Presumably, if an
employee tests positive for Buprenorphine, they will be fired. Otherwise, why
use the test?

But should an employee be fired because he or she sought professional medical help to be
treated for addiction?

Thursday, February 8, 2018

Kris Kenny was employed by Walmart. He
helped an elderly customer by lifting a heavy item from the shopping cart to
the customer’s car. He re-injured his back.

Under Walmart’s
rules, he was required to get a drug test within 24 hours or be fired. He
refused to be tested. He was then fired.

He (and others) have sued
Walmart, claiming that the drug-testing policy violated workers’ privacy rights
under the California Constitution. He also argued that firing workers based on
not complying with that allegedly unlawful policy violates California law.

Teaching Point: Why do employers have drug-testing rules like
this? A good reason is that some workplace injuries are linked to drug use and
abuse. Employers shouldn’t have to pay expensive worker comp claims, including
treatment, for these people.

But Walmart’s rule covers every workplace injury.
This is terrible for several reasons.

First, it deters reporting of workplace
injuries, even for people who do not abuse drugs.

Second, it allows Walmart to administer
a broad testing policy. Not only can they test for illicit drugs; they can test
for prescribed medications, such as barbiturates that help epileptics control their seizures. Unless Walmart has a specific business justification for
testing for your prescribed medications, this is unlawful under the ADA (but hard to enforce
in behalf of workers). Third, they use this type of test in a growing number of
Republican-controlled states, where “fault” is now part of workers comp. In
other words, if you work for Walmart in a state such as Oklahoma (where there
is a fault element), and you help an older customer with a heavy item, Walmart
is off the hook for your back injury. You, the little guy, are entirely on your
own.

Wednesday, February 7, 2018

My law class
simulated a version of the Chief Illiniwek dispute in a mock negotiation. A fictional group, Native
Americans for Justice, protested the University of Illinois’s use of the name
“Fighting Illini.” I have run the simulation since 2002.

Something new
happened today. The Native American group did a deep dive into the history of
the name “Fighting Illini.” They found that the term was coined before Memorial
Stadium was even built. The name applied to the hundreds of
men—University of Illinois students— who fought in World War I. The
name grew in circulation when the university built a stadium to honors fallen
UI soldiers. Only later—in about 1926— was the name Fighting Illini linked to
the first Chief Illiniwek.

Generations later, many people think of Fighting
Illini as a reference to a long-forgotten tribe. Historically speaking, this
paves over the origins of Fighting Illini.

So, this group of law
students proposed that U of I adopt the Doughboys as a new mascot. They made
the political argument that Chief supporters, who are generally patriotic and
pro-military, would have difficulty arguing that this symbol was not part of
American heritage. They argued, too, that it made good sense to have a mascot
that embodies the idea behind the name of Memorial Stadium.

The Native American
team and UIUC administration team could not agree to this concept. The
administration team contended that whether or not the history lesson is
accurate, this does not reflect the current and longstanding view of “Fighting
Illini”— at least not in the minds of already disappointed Chief supporters.
The administration thought that the new name would simply stir the pot, not
calm the waters. (The Army had a unique role in killing and forcibly removing Native Americans, so the administration team thought this could revive that history.)

My question for you is: What do you think? Share your views
on FB or at mhl@illinois.edu.
All ideas are welcome.

Photo Credit: The logo was posted by DomIllini on the Illini Loyalty Fan Board on May 3, 2016. The image is copyrighted by Chad Garland.

Tuesday, February 6, 2018

What if President Trump
literally stated that as a matter of immigration policy, his executive orders
would allow more whites but not people of other races? Of course, that was
the gist of his “shithole country” comment. Haiti is 95% black.Norway’s population is more than 92% white.

His constitutional powers are plenary (unquestionable;
absolute); but could he use this power constitutionally to favor whites over
other races? I pose that question in my research article, Whites Versus Indians: Is the “Hire American” Preference in Executive Order
13788 Constitutional?

To answer that question, I explore President Trump’s “Buy
American and Hire American” edict in Executive Order 13788. The order (see the U.S. official logo, above) states
that the current immigration laws for H-1B visas (high tech workers) will
be subject to “rigorous enforcement.” That’s the workplace version of extreme
vetting. I believe it means that Indian workers will be targeted for special enforcement; and if their paperwork isn't on them or has a problem, they'll be detained and sent back to India (without trying to fix the problem here).

I have assembled some data tables to answer this research question.The first table shows that half the H-1B workers come from India.

The second table shows that 62% of H-1B workers come from Asia:

The third table shows that if Asians are taken out of the U.S. science and engineering workforce, the high tech industry would be 90% white. The Asian category includes many Asians who were born in the U.S., or are naturalized citizens, or green card holders. But it’s also true that H-1B workers make up a significant (but unknown) percentage of the Asian-worker category. My point? If the administration deports large numbers of H-1B workers as the order implies, the workforce in Silicon Valley and similar will be something like 80-85% white. That's what "Hire Americans" means in the order.

Returning to my question— is an executive order that creates
white racial preference constitutional?—the answer is that we have never had
this exact court case. I’ll offer this assessment. Most judges and Supreme Court Justices have
decided these types of questions on grounds of the president’s plenary powers.
That’s where I think most courts, including the Supreme Court, would land. But
if that is true, it also means that our Constitution allows a president
unchecked power to impose racist immigration rules.

Saturday, February 3, 2018

I’m
pro-immigration; but in my research on a specific legal immigration program, I
am finding evidence that supports immigration restrictions. I’ll briefly
present information from a “restrict immigration” and “maintain immigration”
perspective. If you don’t learn anything new, I have
failed here.

The
H-1B program applies to “specialty occupations,” namely computer programming,
engineering, and accounting. Think of Silicon Valley (and your local version of
a high tech cluster). Employers say that cannot find enough qualified
Americans. Opponents say the program is used to substitute cheap foreign labor
for American jobs.

Let’s
say you want to hire an H-1B worker. You need to advertise the job locally. If
you cannot fill it, you need to put an application together. In it, you must
promise to pay the H-1B worker a prevailing wage rate that is measured by state
or federal government agencies. You can’t fudge numbers.

Even
if you go through this process (it costs about $20,000 in lawyer fees per
application), there is an annual limit of 65,000 (plus 20,000 international
students in the U.S. who can be hired for up to 24 months). Often, the quota is filled in a week; many applications rejected (wasting money spent on attorney's fees).

Okay,
now let’s think about some new information.

Restrictions Perspective:
Those low quota numbers are really misleading. According to federal government data, this
group totaled 494,565 in 2011; 473,015 in 2012; 474,355 in 2013; 511,773 in
2014; and 537,450 in 2015. This is because an H-1B worker can remain in the
U.S. for up to six years—and then, when the legal limit is reached, they can
apply for an extension as they work toward getting a green card (a very slow
and cumbersome process). Two good arguments from this points of view? First,
this program is “temporary” in the law, but permanent in reality. Few H-1B
workers ever return to India, China, and so forth. Second, even in the past six
years, these high numbers have gone up by 10%.

Maintain Perspective:
These workers add immense value to the American economy. A study by Giovanni
Peri, Kevin Shih, & Chad Sparber, STEM
Workers, H-1B Visas, and Productivity in US Cities, 33 J. of Labor Econ. 225 (2015), finds that
for every one-percentage point increase in the foreign STEM share of a city’s
total employment [that is a proxy for H-1B jobs], wages grew by 7-8 percentage
points for college-educated Americans, and 3-4 percentage points for
non-college educated natives. Want more practical evidence? Look at the 20-year
boom in the San Jose-San Francisco area, where wages are shooting up, as are
rents, real estate values and economic output. So, if you are bothered by the
10% growth in these workers, ask yourself: Have tech industries grown by only
10% since 2011, or have they grown exponentially? Why is 10% growth in H-1B visa holders a problem if these workers are expanding the pie of progress?

I
will write later on President Trump’s Executive Order 13788, which will sharply
decrease this program.

Friday, February 2, 2018

A company supervisor,
trying to dissuade employees from voting for a union said, “Don’t you know if
you all get the union up here you’ll be sitting up here by niggers?” Unions
also play the race card in vulgar ways. Trying to drum up votes, a union
representative falsely told workers that a manager referred to them as a “bunch
of niggers.” Both times the race card was used, it
worked: In the first case, a union was defeated; in the second case, a union
was elected.

My research article, “Slurred
Speech: How the NLRB Tolerates Racism,” shows how the nation’s labor board is
too lenient with racial slurs used in the context of elections for unions and
also strikes. Columbia Journal of Race and Law will publish this research later
this year.

For example, the NLRB
ordered a company to reinstate—with backpay— a striking employee who intimidated
a replacement worker by extending both middle fingers while screaming “fuck
you, nigger.”

This has to stop.
Title VII—the nation’s employment discrimination law— makes employers liable
for tolerating these racial slurs.

In effect, employers
have to make an awful choice: face penalties from the NLRB, or from the EEOC. I
argue that the NLRB should use the EEOC’s standard for racial harassment.

My research also
presents evidence showing how expensive liability is for employers when they
tolerate racial slurs.

Thursday, February 1, 2018

A thoughtful student
wrote this evaluation on an employment law course I taught last semester:

I would strongly recommend avoiding cases and/or sharing
stories that use the “N” word. I do not believe the instructor was attempting
to be insensitive but more than one case shared involved the use of the word.
Despite relevance and an attempt to enlighten, it still created a feeling of
discomfort for me.

Bravo and thanks to
this student. I, too, feel uncomfortable using this despicable word; and until recently, I did not teach
these cases.

But my justification
is captured in the cases listed below (a small sample). We read only three cases; but they are jarring, in part, because the word was also used with a pattern of harassing conduct.

My point: White people call black people at work “nigger”—
with alarming regularity. Painful as this word is, I chose last semester not to whitewash what’s
happening.

Consider these cases and brief excerpts: Cowher v. Carson
& Roberts, (N.J. 2012) (fired employee called others “Jew Bag,” “Fuck [ ]
you Hebrew,” “Jew Bastard,” “Where are [you] going, Jew,” “I have friends in
high places, not in fucking temple,” “Jew Shuffle,” “If you were a German, we
would burn you in the oven,” “We have Jews and Niggers that work here”); Nazir v. United Airlines, Inc., (Cal. 2009)
(terminated employee of Kuwaiti and Pakistani descent may proceed to trial under
state discrimination law after being called “sand nigger,” “sand flea,” “rag
head,” and “camel jockey”); Ayissi–Etoh v. Fannie Mae, (D.C.Cir. 2013) (“being
called the n-word by a supervisor … suffices by itself to establish a racially
hostile work environment”); Rivera v. Rochester Genesee Reg’l Transp. Auth.,
(2d Cir. 2012) (“no single act can more quickly alter the conditions of
employment and create an abusive working environment than the use of an
unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence
of his subordinates”); McGinest v. GTE Serv. Corp., (9th Cir. 2004) (“It is
beyond question that the use of the word “nigger” is highly offensive and
demeaning, evoking a history of racial violence, brutality, and
subordination”); Swinton v. Potomac Corp., (9th Cir. 2001) (the word “nigger”
is “perhaps the most offensive and inflammatory racial slur in English, ... a
word expressive of racial hatred and bigotry”); Spriggs v. Diamond Auto Glass, (4th
Cir. 2001) (far more than a “mere offensive utterance,” the word ‘nigger’ is
pure anathema to African-Americans”); Rodgers v. Western-Southern Life Ins. Co.
(1993) (“Perhaps no single act can more quickly alter the conditions of
employment and create an abusive working environment than the use of an
unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence
of his subordinates”); Daso v. The Grafton School, Inc., (D.Md. 2002) (“The
word ‘nigger’ is more than [a] ‘mere offensive utterance’…. No word in the
English language is as odious or loaded with as terrible a history.”); Bailey
v. Binyon, (N.D.Ill. 1984) (“The use of the word ‘nigger’ automatically
separates the person addressed from every non-black person; this is
discrimination per se.”); and City of Minneapolis v. Richardson, 239 N.W.2d
197, 203 (1976) (“We cannot regard use of the term ‘nigger’ ... as anything but
discrimination ... based on ... race.... When a racial epithet is used to refer
to a [black] person ..., an adverse distinction is implied between that person
and other persons not of his race. The use of the term ‘nigger’ has no place in
the civil treatment of a citizen....”).

My research (published
today) shows that workers across many occupations are “misclassified” as
independent contractors. As a result, they are not paid minimum wage or
overtime, nor do they receive worker’s compensation if they are hurt on the
job. Pension? No. Health insurance for these workers? No.

Abuses are prevalent
in these cases. For example, maids who were improperly classified as independent contractors by a Chicago-area cleaning company lost a $2,000
deposit they paid to secure work through this "Uber" version of home cleaning. Workers lost the deposit if
they quit before a date set by the cleaning firm. The practice is a variant of
peonage, a system of debt labor that is illegal in the U.S.

Wednesday, January 31, 2018

A prominent study by
two labor economists, published in 2010, suggests that the answer is yes. Prof.
William Kerr (Harvard) and Prof. William Lincoln (Michigan) studied U.S. patents
from 1990 through 2008. They picked these years because the “science and
engineering” visa—technically called H-1B—was created in 1990.

They found clear ethnic and nationality patterns in successful
patent applications. Anglo-Saxons received 63%-76% of patents in this period;
Europeans received 13%-16%.

Kerr and Lincoln
asked this question: How much do H-1B visa holders add—if anything—to U.S.
patents?

The answer: About 10%-20%, give or take. From 2000-2008,
Chinese led the way with about 8% per year of all patents, followed by about 6%
by Indians, 4% by Hispanics, 3% by Russians, and 2-3% by other Asians. See the
chart.

The Trump
administration is already taking steps to reduce the number of H-1B visas by reducing
their numbers and slowing down an already very slow process. His proposed
legislation would further reduce this group of valuable contributors.

The article of this
publication is “The Supply Side of Innovation: H-1B Visa Reforms and Ethnic
Invention,” published in Journal of Labor Economics (2010).

Sunday, January 28, 2018

My post on this topic
has generated a lot of interest—and a request for a breakdown by age and sex.

What a good question. This table gives us insight as to whether we as individuals might be working past “retirement
age” (there is no such thing, by law, except for pilots and such).

So, look it over [CLICK ON IT] and
feel free to comment on FB or privately.

My take?

First, notice the
gray vertical bars. They stand for periods of recession. I would have thought recessions
would affect the labor force participation rate. If you’re unemployed in a soft
labor market, you might drop out altogether in the labor force.

But the trends all
seem to shrug off this factor.

Older people are in
the dotted lines near the bottom (men are blue, women are red). Both groups have rising
participation rates, going back for 20 years.

Is this due to
declining pensions and pension security? Maybe. Is it due to seeking a social
connection via work? Maybe. Is it due to seeking health insurance? Maybe. Are
there other factors? Maybe.

Another trend that
catches my eye: The rate for men (all ages) has been dropping, down from 95% in
the 1950s to 85% today. That might suggest why Donald Trump resonates among
this group. Fifteen percent of about 160 million American men (ages 16-64) who have dropped out of
working is a really big number.

Personal Bio

Published extensively on antitrust in professional sports, immigration and employment, strikes and lockouts, voluntary and mandatory arbitration, employee involvement teams, academic freedom, and labor law implications stemming from national emergencies

Testified before the full U.S. Senate Committee on Labor and Human Resources

Consulted at the request of the President's Council of Economic Advisers in connection with the Taft-Hartley labor dispute involving Pacific Maritime Association and International Longshore and Warehouse Union

Advised the President's Commission on the United States Postal Service (this bi-partisan commission adopted my recommendations for the use of final offer interest arbitration with various postal worker unions)